CONCURRING OPINION. Appellant, pursuant to ch. 81, Acts 1927 p. 208, by petition, applied to the court below to have determined his status, rights and duties as prosecuting attorney of the Eighth Judicial Circuit after December 31, 1931.
The unquestionable facts, in substance, show that appellant, at the general election in November, 1928, was elected prosecuting attorney of the Eighth Judicial Circuit of Indiana, qualified and took office January 1, 1930, under a commission which will expire December 31, 1931; that the General Assembly, at its regular session in 1929, enacted a statute approved March 6, 1929, § 11829 Burns Supp. 1929, which provides: Section 1. "That at the general election in the year 1930, and every second year thereafter, there shall be elected in each judicial circuit in the State of Indiana, a prosecuting attorney, who shall prosecute the pleas of the state in the courts of such circuit: Provided, however, That in all judicial circuits in the State of Indiana wherein the prosecuting attorney elect has a commission which expires in December, 1931, there shall be no election held at the general election in November, 1930, for the purpose of electing prosecuting attorneys of said judicial circuits, but the election of prosecuting attorneys in said judicial circuits shall be held at the general election occurring in the year 1932 and every second year thereafter." Section 2. "The term of office of every person hereafter elected prosecuting attorney of any judicial circuit in the State of Indiana shall begin on *Page 80 the 1st day of January next succeeding his election." Ch. 27, Acts 1929 p. 49. That notwithstanding the provisions of the foregoing act, Scott Moser, appellee herein, and this appellant were each, at the primary election May 6, 1930, nominated as candidates for the office of prosecuting attorney for the Eighth Judicial Circuit and, upon separate party tickets, voted for at the general election held November 4, 1930, at which election appellee was declared elected and in due course the Governor of the State of Indiana commissioned him as such officer for the term commencing January 1, 1932; that although the act of 1929,supra, imperatively prohibited the election of a prosecuting attorney for the Eighth Judicial Circuit in 1930, still, appellee, Moser, is claiming his election was according to law, for the reason that the 1929 act is unconstitutional and void, and hence, on January 1, 1932, he will be entitled to the office to which he was elected and qualified; that an actual controversy has arisen between appellant and appellee as to their rights and duties respecting the office of prosecuting attorney of the Eighth Judicial Circuit beginning January 1, 1932, until January 1, 1933.
Appellant prayed for a declaratory judgment in his favor and other relief. Appellee answered by a general denial. Evidence was heard and the court found that the act of 1929, supra, was unconstitutional and void; that the election of appellee as prosecuting attorney for the Eighth Judicial Circuit was legal, and that his term of office commences January 1, 1932. Judgment in accordance with the findings. Appellant's motion for a new trial, on the ground that the decision of the court was contrary to law and not sustained by sufficient evidence, was overruled, and this ruling is here assigned as error.
In support of the judgment of the lower court, appellee, in effect, insists that the act of 1929, supra, violates *Page 81 Art. 7, § 11 of our state Constitution, in that it postponed the election of prosecuting attorney for the Eighth Judicial Circuit beyond the 1930 general election, thus depriving the voters of that circuit of the right to elect a prosecuting attorney to succeed the present incumbent at the close of his term, December 31, 1931, citing Gemmer v. State, ex rel. (1904),163 Ind. 150, 71 N.E. 478, 66 L.R.A. 82; Russell v. State, ex rel. (1909), 171 Ind. 623, 87 N.E. 13. Thus, the validity of ch. 27,supra, is challenged and is the decisive question in this case.
The words "article" and "section," or "Constitution" in this opinion refer to the Indiana Constitution.
True, as claimed by appellant, the cases cited and relied on by appellee involved the terms of county officers — treasurer and auditor — and that the term of each of these officers is fixed by the Constitution at two and four years respectively. Furthermore, the manner of their election and the time — at general elections — is settled by Art. 6, § 2.
The particular section of the Constitution said to be violated by ch. 27, supra, is Art. 7, § 11, § 178 Burns 1926, which provides: "There shall be elected in each judicial circuit by the voters thereof, a prosecuting attorney, who shall hold his office for two years." The noticeable difference between this latter section and § 2 is, there is no express constitutional provision requiring that prosecuting attorneys be elected at any fixed time or "at the time of holding general elections." Hence, appellant insists that, inasmuch as Art. 6, § 2, supra, pertains to county officers alone and fixes their term of office, time of election, and ineligibility for a longer term, and that Art. 7, § 11 refers to a judicial officer only with the single limitation as to the length of his term of office, legal principles applicable to the *Page 82 one do not apply to the other. Thus we have the basis for his claim that the above cases cited by appellee are not controlling of the instant case.
In the Gemmer Case the act (Acts 1903 p. 24), held unconstitutional, postponed the election of a county treasurer beyond the time the incumbent's successor might be elected; and in the Russell Case the statute in question (Acts 1901 p. 411), held unconstitutional, deferred the beginning of the term of the county auditor beyond the quadrennial period when the voters had the right to elect. These cases were distinguished (Russell v.State, ex rel., supra, p. 629) from the cases of Weaver v.State, ex rel. (1899), 152 Ind. 479, 53 N.E. 450, and Scott v. State, ex rel. (1898), 151 Ind. 556, 52 N.E. 163. In my opinion, the decision in both the Gemmer and Russell Cases rests entirely upon the express provisions of Art. 6, § 2, which includes important elements not found in Art. 7, § 11. Therefore, it can hardly be said that those cases decide the real question at bar. However, the reasoning for the result thereby reached, is worthy of some consideration, but it must be restricted to the case before the court, and to that extent only is the decision an authority. Pierce v. Blair (1925), 196 Ind. 710,149 N.E. 560. Since there is nothing in the Constitution fixing the time of electing prosecuting attorneys or when their terms of office shall begin, it may be reasonably argued, as appellant has done in this case, that the state Legislature may fix the beginning of terms of all such officers not fixed by the Constitution, for the reason there is no express or implied constitutional inhibition against it.
In March, 1881, Art. 2, § 14, § 102 Burns 1926, of the Constitution was amended so that "All general elections shall be held on the first Tuesday after the first Monday in November," instead of the second Tuesday in October, as provided in the Constitution of 1851. In *Page 83 recognition of the foregoing amendment, the Legislature, in 1881, passed an act providing that "A general election shall be held on the first Tuesday after the first Monday in November in the year one thousand eight hundred and eighty-two, and biennially thereafter on the same day, at which election, all existing vacancies in office, and all offices the term of which will expire before the next general election thereafter, shall be filled, unless otherwise provided by law." Acts 1881 (Spec. Sess.) p. 482 (approved April 21, 1881), § 7441 Burns 1926. Chapter 27, supra, does not provide for the election of prosecuting attorneys other than at a general election. Such an election was held in November, 1930. Under the law, the next general election will be held in November, 1932.
This court has said that prosecuting attorneys are not state, county or township officers, and has classified them as constitutional officers whose terms of office cannot be abridged or extended by the Legislature beyond the term fixed by the Constitution. State v. Patterson (1914), 181 Ind. 660, 105 N.E. 228; State, ex rel., v. Friedley (1893), 135 Ind. 119, 34 N.E. 872, 21 L.R.A. 634; Moser v. Long (1878),64 Ind. 189; Russell v. State, ex rel., supra, p. 629.
As we have seen, the Constitution has prescribed a two-year term for prosecuting attorneys, and, under § 7441, supra, they are to be elected at general elections. It is conceded that appellant's term of office will expire December 31, 1931; that appellee was elected at the general election in November, 1930, and has qualified and will be entitled to take office January 1, 1932, unless his election was illegal.
It has been said that an election held at a time not authorized by law is void and "conferred no right to the office."Kimberlin v. State, ex rel. (1892), 130 Ind. 120, 29 N.E. 773, 14 L.R.A. 858, 30 Am. St. 208. *Page 84 At this point it may be well to notice Art. 15, § 3, § 232 Burns 1926, which provides that: "Whenever it is provided in this constitution or in any law which may be hereafter passed that any officer, other than a member of the general assembly, shall hold his office for any given term, the same shall be construed to mean that such officer shall hold his office for such term and until his successor shall have been elected and qualified." The purpose of this constitutional provision was not to extend constitutional offices beyond the term for which they were elected, but to prevent vacancies in office except by death, resignation, removal and the like. State, ex rel., v.Harrison (1888), 113 Ind. 434, 16 N.E. 384, 3 Am. St. 663;Kimberlin v. State, ex rel., supra.
Appellant's term of office — two years — as determined by the Constitution under the ruling of this court, ends when his successor is elected and qualified. Steinback v. State, exrel. (1872), 38 Ind. 483; Koerner v. State, ex rel. (1897),148 Ind. 158, 47 N.E. 323; State, ex rel., v. Bemenderfer (1884), 96 Ind. 374. In State, ex rel., v. Harrison, supra, in speaking of an officer's right to hold over, it was said: "This right to hold over continues until a qualified successor has been elected by the same electorial body as that to which the incumbent owes his selection, or which by law is entitled to elect a successor."
In my opinion, a fair interpretation of § 11, supra, when construed in the light of the rulings of this court to which I have called attention, serves to inhibit the Legislature from passing any law that would prevent the voters electing prosecuting attorneys at each biennial general election, thereby avoiding extending a constitutionally fixed term or the creating of a vacancy. If the Legislature may postpone the filling of a constitutional office, where the commencement of the term is not fixed, beyond the time, as here, a successor should *Page 85 be elected, on the theory of power to fix the beginning of the term, then clearly the obvious effect of such legislation would be to indirectly increase the term, which all of the authorities agree cannot be done. We, therefore, hold that ch. 27, supra, is unconstitutional and void.
Appellant makes the point that, inasmuch as the Legislature of 1852 had the right to fix the time for electing prosecuting attorneys, then each succeeding Legislature, including the Legislature of 1929, had the inherent right to change the date for holding such elections.
Our state Constitution consists of 16 articles, followed by what the framers thereof designated as a "schedule." 1 R.S. 1852 p. 70. It is true, the ninth clause of this "schedule" provides that the first election for prosecuting attorney under the new constitution "shall be held at the general election in the year" 1852. Prior to the taking effect of the Constitution of 1851, prosecuting attorneys were elected by popular vote, so that clauses 9 and 10 together continued in office any such officer then in office or elected to such office before the taking effect of the Constitution until his term of office expired, but not longer than the term prescribed in the new Constitution. These clauses were adopted, as stated in the introductory statement of the "schedule," for the purpose of avoiding any inconvenience that might arise from the change of government. They were of limited duration and have long since served their purpose.
I shall not take the time and space necessary to analyze the legislative enactments of January 27, 1847, January 16, 1849 and February 14, 1851, with reference to the election of prosecuting attorneys, by reason of which the terms of these officers expired at different times, and clauses 9 and 10, supra, took care of this situation. Whether a prosecuting attorney for the *Page 86 Eighth Judicial Circuit was elected in 1852, I am not advised. However, neither Brown nor Johnson counties was a part of that circuit at that time. As a matter of information, prior to the 1852 election, Brown was a part of the First and Johnson a part of the Fifth Judicial Circuit until May 5, 1869, when both of these counties became a part of the Twenty-Eighth Circuit. March 6, 1873, Shelby and Johnson counties composed the Sixteenth and Brown and Bartholomew the Ninth Circuit. February 28, 1899, Johnson and Brown counties were made the Eighth Judicial Circuit and have continued as such until this time. This last contention of appellant is not well taken.
I concur in affirming the judgment.
I concur in this opinion, Travis, C.J.